Federal Evidence Review

Another circuit finds a statement against interest under FRE 804(b)(3) is non-testimonial; Cooperating witness’s tape recording of co-defendant bragging to other inmates about his and the defendant’s role in the charged robbery was non-testimonial because “a reasonable person in the declarant’s [co-defendant’s] position” would not anticipate his statement being used against the defendant in investigating and prosecuting the crime, in United States v. Johnson, 581 F.3d 320 (6th Cir. Sept. 18, 2009) (No. 08-1662)

Under Crawford v. Washington, 541 U.S. 36, 68 (2004), the circuits have applied the Confrontation Clause construction that bars the admission of a witness’s “testimonial statement” unless the witness is unavailable to testify at trial and the defendant had a prior opportunity to cross-examine the witness. In Davis v. Washington, 547 U.S. 813, 824-26 (2006), the Supreme Court underscored that the Confrontation Clause does not apply to statements that are non-testimonial in nature. While this issue often presents a fact-specific inquiry, as noted below, a growing number of circuits have found that a statement admitted against interest under FRE 804(b)(3) is not testimonial and therefore not subject to the Confrontation Clause analysis under Crawford.

In the recent case of United States v. Johnson, the Sixth Circuit concluded that a statement against penal interest was non-testimonial and therefore not subject to the restrictions of Crawford. In Johnson, the defendant was convicted of bank robbery based on admission of a tape-recorded statement by a non-testifying co-defendant. The recording was made by inmate Nix-Bey who had overheard co-defendant O’Reilly “bragging” about participating in the charged robbery. The inmate agreed to question O’Reilly further and to use a recording device disguised as a radio to capture the conversation. With the device he “recorded a conversation with O’Reilly in the yard of the Macomb prison in which he asked O’Reilly for details about the … robbery. O’Reilly provided extensive information, including the full names of the other participants in the crime,” including the defendant’ name. At the defendant’s trial, Nix-Bey testified “in detail about what O’Reilly had told him, and the district court admitted the tape-recording of their conversation into evidence over Johnson’s objection.” Johnson, 581 F.3d at 324. After his conviction, the defendant on appeal contended that the admission of the tape violated the hearsay rule and his rights under the Confrontation Clause.

The Sixth Circuit affirmed the conviction and the admission of the challenged evidence. The circuit first disagreed with the defense contention that the content of O’Reilly’s tape-recorded statements was testimonial, so that is admission would violate the Confrontation Clause under Crawford. The circuit identified the test applicable to whether the statement was testimonial:

“In determining whether statements are testimonial, we ask whether the declarant ‘intend[ed] to bear testimony against the accused.’ United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004). This, in turn, depends on ‘whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting the crime.’ Id. Because O’Reilly did not know that his statements were being recorded and because it is clear that he did not anticipate them being used in a criminal proceeding against Johnson, they are not testimonial, and the Confrontation Clause does not apply.”

Johnson, 581 F.3d at 325 (citing United States v. Johnson, 440 F.3d 832, 843 (6th Cir. 2006) (holding that an unwitting declarant’s secretly recorded statements to a close friend were non-testimonial); United States v. Mooneyham, 473 F.3d 280, 286-87 (6th Cir. 2007) (stating that co-defendant’s out-of-court statements to an undercover officer whose status was unknown to the declarant were non-testimonial)).

The Sixth Circuit also cited other circuits that had reached the same conclusion, including:

• Second Circuit: United States v. Saget, 377 F.3d 223, 229 (2d Cir. 2004) (co-conspirator’s statements against defendant to a confidential informant, whose true status was unknown to co-conspirator, did not constitute testimony) (Sotomayor, Circuit Judge)
• Third Circuit: United States v. Hendricks, 395 F.3d 173, 182 n.9, 184 (3d Cir. 2005) ("[B]ecause they [statements of various defendants and coconspirators] constitute admissions unwittingly made, the defendants and coconspirators' portions of the CI Rivera conversations are clearly nontestimonial statements and are thus not subject to the Crawford rule.")
• Seventh Circuit: United States v. Watson, 525 F.3d 583, 589 (7th Cir. 2008) (“[A] statement unwittingly made to a confidential informant and recorded by the government is not ‘testimonial’ for Confrontation Clause purposes.”; co-defendant’s hearsay statement to associate that defendant claimed he could not possibly have been identified in the crime was admissible under FRE 804(b)(3) as it at the very least exposed defendant to being charged as accessory after the fact, and this evidence was not testimonial and admissible because the Confrontation Clause does not apply to non-testimonial statements)

The Sixth Circuit indicated that the focus of a review into whether a statement is testimonial should focus not on the purposes of the person overhearing or recording a statement, but rather it is “the intent of … the declarant … [that] determines whether the statements … are testimonial.” Because the declarant, O’Neill, “did not know that his statements were being recorded and because it is clear that he did not anticipate them being used in a criminal proceeding against Johnson, they are not testimonial, and the Confrontation Clause does not apply.” Johnson, 581 F.3d at 325.

For other case examples from the last year, addressing the issue of considering non-testimonial statements under FRE 804(b)(3), consider:

• Eighth Circuit: United States v. Honken, 541 F.3d 1146, 1161-62 (8th Cr. 2008) (maps sketched by defendant’s girlfriend led investigators to victims’ bodies were non-testimonial and were admissible as statements against penal interest under FRE 804(b)(3) because the girlfriend was unavailable to testify as she was invoking her right not to testify, yet her statement by admitting she knew where the victims’ bodies were buried implicated herself in the murders and thus was not subject to Confrontation Clause)
• Eleventh Circuit: United States v. US Infrastructure, Inc., 576 F.3d 1195, 1209 (11th Cir. 2009) (“Given that McNair’s statement to Dawson was part of a private conversation, it is ‘non-testimonial’ within the meaning of Crawford, and Crawford’s strict Confrontation Clause requirements do not apply” as the Crawford rule applies only to testimonial evidence and the statement was properly admitted under FRE 804(b)(3).)

In Crawford, the Supreme Court explicitly left open the definition of “testimonial” evidence. It left “for another day any effort to spell out a comprehensive definition of ‘testimonial’,” even recognizing that “our refusal to articulate a com-prehensive definition in this case will cause interim uncertainty.” Crawford, 541 U.S. at 68 n.10. As Johnson demonstrates, the circuits have embraced the task of filling in the uncertain aspects of the doctrine of testimonial statements and doing so with a great degree of unanimity when it comes to statements against interest under FRE 804(b)(3).